A curious area where injustice appears to be of high dosage is the Nigerian sports, sector with particular reference to football.

We were able to secure an Arbitration judgement for 49 players of Nassarawa united, who have not been paid their salaries for over two years.

We reached out to Federation of International Football Associations , who promptly informed us about that the resolution of the crises lies internally in Nigeria.

Generally by Sports Law, Nigerian local courts are deprived the jurisdiction to handle sports cases, as players and clubs are mandated by the rules to submit to the internal arbitration mechanism of Their different football associations, after securing judgment in favour of these players, their clubs and The Nigerian Football Federation refused to enforce these decisions, which emanated from them, some have blamed this phenomena on corruption.

RESULT

The NGO secured a stipend for these players who had wives, children and parents to cater, with many of them due to abandonment by their clubs are still nursing untreated injuries, sustained while in active football tournaments. This stipend was paid by the League Management Company.

After ardent legal consultations, The NGO has had decided to sue the clubs and the Nigerian Football Federation to Nigerian courts, this a first of its kind in Nigerian Legal jurisprudence, asking for the enforcement of the Arbitration decision in favour of the player, the matter is currently before the National Industrial Court Abuja.

Finally the Nigerian Justice sector from our experience is fraught with the following challenges:

FEDERAL REPUBLIC OF NIGERIA v. JOHN ANECHE OF CAMEROON FHC/.ABJ/CR//185/16

FACTS

John Aneche a Nigerian by Birth and Cameroonian by registration, was deported from Canada, sough to renew his Nigerian Passport at The Lagos Immigration Office, He was approached by a Senior Nigerian Immigration Officer, who asked him to dole out cash as bribe to her before she can process his passport, he bluntly refused and threatened to report her, the officer in question promised to deal with him, this appeared to be the genesis of his problems. He was detained the same week, and after many months in detention he was transferred in 2017 Soka Abuja Immigration cell and eventually bundled to Kuje Prisons.

RESULT

In one of our visits, we agreed to fight his cause; he was finally arraigned iN Abuja for purported forgery of documents and lying to a passport officer. We argued that the case ought to be tried in Lagos where the purported incident happened not in Abuja, the court promptly washed his hands off it and the matter was transferred to lagos and the accused ferried by road to IKoyi Prisons in Lagos. We enlisted the assistance of our Lagos team that continued to represent the accused in court, finally, sometime in November 2017, the court agreed with our insistence that the charge lacked proof and ordered the discharge of the accused person.

ASHES UNITE FOUNDATION AFRICA is a Non-governmental Organization set up to primarily defends the fundamental human rights of Nigerians and Africans in General. It is a unique organization that is powered by young professionals who are focused on a passionate determination to enthrone peace, support livelihood and defend vulnerable Youths, Women and Children.

Since the commencement of operations in 2016 it has taken up many cases, of which some notable instances includes the following:

Sometime in October 2015, Mr Safiwahi Zukipilu, Ahmed Ibrahim and Nafiu Ibrahim while on vacation at their fathers separate farmlands in Mlanfasie village in Katsina State were summoned to a local Police Post in their state, When they reported, they were bundled to Zuba Police station in Abuja where They were engaged in the business of Commercial motorcycle driving, on arriving Abuja, they were handed over to the Dreaded The Special Anti-Robbery Squad Abuja Criminal Investigation Unit.

According to them, while in detention, they were not immediately informed of the reason for their detention, they were heavily beaten, and finally informed that they were arrested for criminal conspiracy, Theft and homicide, since they lacked formal education they never understood the reason for their arrest until they were later informed in “hausa” that they killed their friend, this sounded very strange to them.

They spent four months at the police facility, before they were processed and sent to Kuje Prisons, where they were incarcerated without any hope, glimpse or smoke of trial. The three of them are married with two children each and aged parents, immediately they were incarcerated, their family, due to poverty and fear of the authorities abandoned them.

They had no access to phones or any form of legal representations, their state of health continued to deteriorate.

In November 2016, roughly one good year after their arrest and continual detention, A team from Ashes Unite Foundation having obtained the permission of the comptroller general of prisons in Nigeria, visited the Kuje Medium security prison as a part of their “Sahara Justice Initiative” which is geared towards defending the rights of “pretrial detainees” in Nigeria.

During the visit, The hopeless condition of the three above mentioned persons were brought to our knowledge by the prisons welfare officer, in compliance with our rules, our team made up of lawyers, psychologists, mediators and other professionals, interviewed the accused persons through an interpreter, who spoke “hausa”.

The accused person told us gory tales of torture, bribery, and sheer suffering, as they kept insisting that their innocence.

The Organization agreed to take up the matter, the first port of call was at the Police Special Anti Robbery Squad in Abuja, it is worthy to note that this detachment of police men are dreaded, according to some Nigerians, arguably due to their penchant for being “trigger-happy”.

At the SARS office, we found out that records of the detention of the accused persons had being wiped clean, they denied ever detaining them at their facility, but due to our continuous visit and persistent pressure they referred us to the Ministry of Justice, where they claimed the matter was already in court.

The legal team wrote to the ministry of justice and severally visited the Attorney General’s office to trace any record of the accused persons, after two weeks, it was discovered that the police Criminal Investigation Department, had forwarded their names to the Directorate of Public Prosecutions, but they failed to attach any proof of Evidence. The matter was assigned to a particular lawyer to prosecute, but the said lawyer failed to do so citing lack of investigation report and proof of evidence.

The worrisome part of this quest is the incessant demand for cash among the officers at the ministry of Justice and the Police before assisting us with any information.

Consequently, when we finished the preliminary legal due diligence we slammed the Inspector –General of Police, The commissioner of Police, The Attorney General and the Comptroller of prisons with a fundamental human rights suit on behalf of the accused persons demanding for their release and adequate compensation.

At the Federal High court Abuja where the matter came up, it took up two month despite our concrete efforts, before they could assign the matter to judges, two matter were assigned to Justice Dimgba, while the third was assigned to Justice Nyako.

The Police refused to appear in court, The prions appeared once and never came to court , the Attorney General’s office entered a defence, but also abandoned the matter.

RESULT

After over Six months of legal tussle, in the light of adjournments and delay and congestion of cases, Justice Dimgba sometime in July 2017, delivered a judgment awarding the sum of one million Naira each as compensation to the accused persons and ordered the prisons to release the duo of Safuwahi Zukufili and Ahmed Ibrahim, but the fate of Nafiu Ibrahim was left hanging as his case kept suffering continued adjournments, due to congestions of cases and by the Court's discretion. Ultimately, we are considering refilling the matter before another judge.

Conclusively, enforcing the judgment of the court which ordered their release was also a long battle, as the Prisons initially refused to comply with the court order, but after a meeting between the prisons controller of Kuje and our legal team, where we explain that the court order is prima facie enough authority to release the detained persons and our threat to file for contempt of court, they hurriedly released them without our knowledge.

Two major sets of legislation regulated criminal procedure in Nigeria- the Criminal Procedure Code for non- federal courts in the northern parts of Nigeria and the Criminal Procedure Act for courts in the southern parts of Nigeria as well as the Federal High Court. These Acts were handed down to Nigeria by Britain. Other laws providing for the administration of criminal justice in the federation exist and have applied for decades without noticeable development in Nigeria’s criminal justice system. This is evident in the delay of justice and the disregard for the protection of the rights of the suspect, the society and the victims or crime. On the 13th of May, 2015, a new legislation- the Administration of Criminal Justice Act, 2015 was enacted. The Act is the outcome of the efforts of a national working group set up by the then Attorney General of the Federation (“AGF”), Chief Bayo Ojo SAN in 2006 as well as the Panel on Implementation of Justice Reform appointed in 2012 by the immediate past AGF, Mohammed Bello Adoke SAN. The Act provides for one uniform Federal Act. It also repealed the Criminal Procedure Act Cap C41 Laws of the Federation of Nigeria 2004; the Criminal Procedure Act (Northern States) Cap C42 Laws of the Federation of Nigeria; and the Administration of Justice Commission Act Cap A3 Laws of the Federation of Nigeria by section 493.

The purposes of this Act include: ensuring that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions and speedy dispensation of justice; and making a deliberate shift from punishment as a main goal of the criminal justice to restorative justice which pays attention to the protection of the society, and the rights of the suspect, defendant and victims of crime[2]. It is key to note that the Act renamed ‘accused person’ as ‘defendant’ whilst by Section 1(1), the courts and other authorities involved in the criminal justice system are mandated to comply with the provisions of the Act.

The Act applies generally to criminal trials for offences created by Acts of the National Assembly or punishable in the F.C.T and to all criminal trials and proceedings irrespective of the court except there is an express contrary provision to that effect[3]. It defines court as including Federal Courts, Magistrates’ Court and FCT Area Courts provided by legal practitioners. The Act however does not apply to Court Martial trials[4]. Below are some of the innovative provisions of the ACJA:

Prosecution

Section 106 of the Act stipulates that prosecution of all offences in any court shall be undertaken by the AGF or a law officer in his Ministry or Department; a legal practitioner authorized by the AGF; or a legal practitioner authorized to prosecute by law.

This provision is commendable as it lays to rest the issue of lay prosecution as approved in FRN v. Osahon[5]. Only lawyers[6] authorised by law to prosecute would have the power so to do since they are more likely to be grounded in the knowledge of the law. This will help to speed up criminal trials in the best interest of justice.

Bail

Sections 30, 31, 32, and 158- 164 make an elaborate provisions on rights of an arrested person to bail. Where Section 118 of the CPA did not provide for exceptions upon which a suspect charged with a capital offence may be admitted to bail by a High Court Judge, section 161 lists some exceptional circumstances which include:

a. Ill health of the applicant which shall be confirmed and certified by a qualified medical practitioner employed in a government hospital;

b. Extraordinary delay in investigation, arraignment and prosecution for a period exceeding one year; or

c. Any other circumstances that the Judge may, in the particular facts of the case, consider exceptional.

Section 162 also lists circumstances where a suspect charged with a felony other than a capital offence shall not be released on bail. In the absence of those circumstances it appears the suspect must be released on bail as opposed to Section 118(2) CPA where the power to grant such bail was discretionary (if it thinks fit). The Act permits oral application for bail in non-capital cases[7].

By section 160 a minor shall, unless it is necessary to remove him from association with a reputed criminal or prostitute, be released on a recognizance entered into by himself or his parent or guardian, with or without sureties. What obtained under the repealed section 121 of the CPA was that a minor cannot himself enter into a recognizance.

Also, money or security deposited must be returned to the defendant or his surety at the end of the trial or on application by the surety to the court to discharge his recognizance.[8]

Objection to a Charge

By Section 220 formal defects in a charge shall not be regarded as material at any stage of the case unless the defendant was in fact misled by the defect. Section 221 provides that objections on the ground of an imperfect or erroneous charge shall not be taken during proceeding or trial.

By Section 222(1) where an appellate court is of the opinion that a defendant convicted of an offence was misled in his defence by the absence of a charge or by a formally defective charge which has occasioned a miscarriage of justice, such court may direct that the trial be recommenced on another charge. Subsection(2) further provides that if the appellate court is of the opinion that the facts of the case are such that no valid charge could be sustained against the defendant in respect of the facts proved, it shall quash the conviction.

It appears from the above that an objection on the ground of formal defects in a charge can no longer be entertained before trial or proceedings have commenced as opposed to the provision of Section 167 of the CPA. This had also been settled in a host of cases including Ezeze v. State[9], Fawehinmi v AG Lagos State.[10]

In a more recent case (July, 2015) - Igbeke v FRN[11], a distinction was made between formal defects, objections to which must be taken immediately after a charge is read out to an accused and before a plea is taken, and substantive defects (such as lack of prima facie case disclosed on a charge) or an issue touching on jurisdiction, objections to which can be taken even before arraignment of the accused.

With the new Act, it appears that objections as to formal defects in a charge can no longer be taken before or during trial. Where there is material error as envisaged under Section 220 such objection can come on appeal by virtue of Section 222.[12] This emphasizes the purpose of the Act which is to speed up criminal proceedings in the interest of justice. This does not mean such objections cannot be raised after trial or on appeal where there is evidence of miscarriage of justice arising from the defect.

Plea Bargain Guideline

Section 270 provides for clear guidelines for the application of plea bargaining. It provides that a prosecutor may, with the consent of the victim or his representative, receive and consider a plea bargain from a defendant charged with an offence either directly from that defendant or on his behalf; he may also offer a plea bargain to a defendant charged with an offence.

This plea bargain must be entered before the defence presents its evidence and on the conditions that:

a. the prosecution’s evidence did not prove the offence beyond reasonable doubt;

b. the defendant has agreed to return the proceeds of the crime or make restitution to the victim or his representative; or

c. the defendant, in a case of conspiracy, has fully aided in the successful prosecution of other offenders[13].

If the prosecutor is of the view that offer or acceptance of the plea bargain is in the interest of justice, the public interest, public policy and the need to prevent abuse of legal process, he may offer or accept the plea bargain[14].

The plea bargain agreement must be reduced to writing and contain the terms of the agreement. It must also state that the defendant was informed of his right to remain silent, the consequences of speaking and that he is not obliged to make any confession or admission that could be used in evidence against him. The agreement shall be signed by the prosecutor, defendant, the legal practitioner of the defendant as well as an interpreter if any and forwarded to the AGF[15].

The presiding judge or magistrate is not to participate in the agreement making. However he must ascertain whether the defendant admits the allegation of the offence charged and if he voluntarily entered into the plea bargain agreement. The enforcement of the plea bargain agreement is subject to the approval of the court after certain considerations have been made[16].

Where a defendant has been convicted based on the agreement, the presiding judge or magistrate shall consider the sentence agreed and if satisfied that it is appropriate, impose it. If in his opinion it should be lesser, he can impose the lesser sentence; if however he feels it should be heavier he must inform the defendant[17]. The defendant may either agree to the heavier sentence or withdraw from the agreement so that trial may proceed de novo[18]. Where trial proceeds de novo no reference shall be made to the agreement, the parties cannot enter into a similar agreement and no admissions or statements contained therein shall be admissible against the defendant.[19]

Any property forfeited under the agreement shall be transferred to the victim or his representative or other appropriate or reasonably feasible person.[20] Anybody who wilfully and unjustly obstructs the transfer and vesting of such property shall be liable to 7 years imprisonment without option of fine. Where a person is convicted and sentenced under this provision he shall not be tried again on the same facts for the greater offence earlier charged. The court’s judgment on conviction is final and not subject to appeal unless fraud is alleged.[21]

Trials and Summary Trials Generally.

Part 36 provides for trials and summary trials generally. By Section 348 trials shall be held in the High Court on information filed by those capable of instituting proceedings, or summarily in accordance with the Act. Trials shall be held in the Magistrate Court or any other court or tribunal exercising criminal jurisdiction in accordance with the provisions of the Act relating to summary trials.

Section 349 provides that where a defendant charged is not represented by a legal practitioner, the court shall inform him of his right to one and enquire from him if he wishes to engage one or get one engaged for him by way of legal aid. Where the legal practitioner who had appeared on behalf of the defendant ceases to appear in court twice consecutively, the court shall enquire from him if he wishes to engage one or get one engaged for him by way of legal aid.

Where the defendant wishes to engage a legal practitioner he is to do so within 30 days and if he fails to do so the court may engage one for him. The defendant may however opt to represent himself if he wishes- a right granted him by section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.[22]

By Section 349(7) a legal practitioner, other than a law officer, engaged in a matter is bound to continue until final judgment unless allowed for a special reason to cease from acting by the court suo motu or on application by the legal practitioner which must be served on the court and all the parties not less than three days before the date fixed for hearing.

Speedy Trial

Section 396 makes provision for day to day trial of criminal cases. Where that is impracticable after arraignment, parties shall only be entitled to five adjournments each and the interval between each adjournment shall not exceed fourteen days. Where the five adjournments have been exhausted and proceedings have not been concluded the interval between adjournments shall not exceed seven days. The court may award costs to discourage frivolous adjournments.

Section 306 provides that an application for stay of proceedings in respect of a criminal matter before the court shall not be entertained.

Section 382 provides that where an information has been filed in court, the Chief Judge shall assign it for trial within fifteen working days of its filing.

Effect of Promotion of High Court Judge during Pendency of a Suit

Section 396(7) provides that notwithstanding the provisions of any other law to the contrary, a judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a High Court Judge only for the purpose of concluding any part- heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time. A proviso exists that prohibits the subsection from preventing the judge from assuming duty as a Justice of the Court of Appeal.

This is a well-meaning provision considering the problem of trial de novo; its practicability is however doubtful unless the 1999 Constitution is to be amended in that respect. This is because the different courts have their different jurisdictions and powers under the constitution. Moreover, it would be inappropriate to allow the same judge hear an appeal on a matter which to his mind he had dutifully decided or worse still vest in him the power to grant leave to an applicant who wishes to appeal his decision. Other irregularities may arise from this kind of arrangement.

Time limitation for Remand Order

Section 296(1) and (2) of the ACJA provide that a remand order shall not exceed 14 days and, if on application, the court extends the remand period, it shall not exceed 14 days. After this period the court may, on application by the suspect, grant bail to the suspect.[23] Pursuant to Section 296(4), if the suspect is still remanded on the expiration of the time limits under subsections (1) and (2) and no trial has been commenced or charge been filed, the court is mandated to issue a hearing notice on the IGP, AGF or COP as the case may be or other relevant authority, within a period not exceeding the time limits under subsections (1) and (2), to show cause why the suspect remanded should not be unconditionally released. If good cause is shown the may extend the remand period to a time not exceeding 14 days for the suspect to be arraigned. The effect of subsections (6) and (7) is that where no good cause is shown the court shall discharge the suspect and no further application for remand shall be entertained.

Power to Dispense with Personal Attendance of Defendant in Certain Cases

Section 266 provides that a defendant shall subject to Section 135 be present in court throughout his trial unless:

a. he misconducts himself in a manner as to render his continuing presence impracticable or undesirable;

b. at the hearing of an interlocutory application; or

c. Where he authorizes his legal practitioner in writing to represent him in his absence or dispense with his physical presence.

This is worthy of note in that the CPA in its Section 210 does not include b and c above.

Appeals from a Magistrate Court to the High Court of FCT

Section 485 provides for procedure of appeal from a magistrate court to the High Court of FCT- such appeals shall be in accordance with the High Court Act of the Federal Capital Territory or any rule made under such Act. The appellant must commence the appeal by giving notice to the registrar of the court from which the appeal is brought stating the grounds of his appeal and such notice shall be signed by the appellant or the legal practitioner representing him.[24]

The notice shall be brought before the expiration of 30 days after the decision appealed against has been made.[25] The appellant is to file as many copies of his brief of grounds of appeal as there are parties to be served, in addition to copies for the court.[26]

A sentence by a magistrate court shall take effect not withstanding an appeal unless a warrant has been issued under Section 326 dealing with sale of property or an order for release on bail pending further proceedings has been made.[27]

Electronic Recording of Confessional Statement

Section 15(4) of the Act provides that where a person arrested with or without a warrant of arrest volunteers to make a confessional statement, the police officer shall record the statement in writing or may record the making of the confessional statement electronically on a retrievable video compact disc or such other audio visual means. When compared with Sections 13(3) and 9(3) of ACJL Anambra State, 2010 and Lagos State, 2011 respectively, the Act does not make electronic visual recording mandatory.

Establishment of a Police Central Criminal Registry and Recording of Arrest

Section 16(1) of the ACJA makes provision for the establishment, within the Nigeria Police, a Central Criminal Record Registry where all records of arrests and convictions across the country shall be stored.

The establishment of Central Criminal Record Registry will ensure that all arrests and judgments are well documented. This is intended to avoid a repeat of what happened in the case of Agbi v. Ibori.[28]

Section 15 of the Act provides for mandatory record of personal data of an arrested person including: the alleged offence(s), the date and circumstances of the arrest, and so on.

Wrongful Arrests, Notice of reason for arrest and Protection of some other rights

Section 18 of the Act does away with Section 10(1)(i) of the CPA. Also, Section 7 of the Act specifically prohibits arrest in lieu of the suspect. Sections 5 of the CPA and 38 of the CPC provide for giving notice to suspect of reason for arrest. The ACJA retains this provision in section 6. However, it adds in Section 6(2) that the police officer or any other person making the arrest must inform the suspect of some other rights basically re-echoing Section 35(2) of the 1999 Constitution of the Federal Republic of Nigeria

The Act in Section 8(1) reiterated the human right constitutional provision of the right to dignity of person.[29] By Section 167(3), a person shall not be denied from entering into a recognizance or standing as surety for any defendant or applicant on the ground only that the person is a woman. This is in line with Section 42 of the 1999 Constitution as well as the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Other provisions exist such as: Section 10 of the ACJA provides for mandatory inventory of items recovered from an arrested suspect; Section 187 which provides for professional Bondspersons. Service of criminal processes by a reputable courier company in accordance with the Act is possible by virtue of Section 392. The Act also provides in Section 109 for time limits for cases to be tried and concluded in a magistrate court. It provides in Sections 302 and 303 for no case submission by the defence and replies and for guidelines the court may follow in reaching a decision based on the submission. This has been provided in cases such as Ajibola v. State.[30] There is provision for non- custodial sentences such as suspended sentence, community service, parole and probation in Part 44 of the ACJA

CONCLUSION

The provisions of the ACJA are a welcome development to the administration of criminal justice system in Nigeria in view of the inclination towards restorative justice as well as speedy dispensation of justice. However the Act has apparently created some more problems as can be gleaned from the foregoing. Some sections such as the provisions on prosecution and speedy trial are impracticable and some others such as the provision relating to promotion of judges are unconstitutional.

Another challenge the Act is likely to face is the enforcement of its provisions as there are certain facilities that have to be put in place before certain provisions can be implemented.

A recommendation that is proposed is for the privatization of prisons in line with the desire to decongest prisons and speed up criminal proceedings. If the Government enters into contracts with managers of private prisons where it has to make certain payments for every suspect awaiting trial in a prison for more than six months, this could motivate the government to ensure, and not just provide on paper, speedy dispensation of criminal justice.

The Socio-political climate of any nation is directly and remotely tied to the level of human rights enforcement at the grassroots level.

A key element of democracy remains what we might term legitimacy, which is in turn borne out of the moral and legal support cum recognition a government or leader enjoys from people and institution.

It is factual that the most important office in any democratic and federal setting is not the office of the president, nor the legislatures, not even the judges, it is in fact the office of the “CITIZEN”

The office of the citizen comes with its own attendant privileges and notable obligations which are clearly and unequivocally expressed in a document called the constitution.

The constitution is a great autochthonous document which is borne out of a “holy” union between the people and the government, the government is borne out of the people but the people are not necessarily determined by government, rather they can be made or marred by the misuse of the instrument of delegation they gave to the government.

Consequently, it is based on the truth that any act or acts that are intended by omission or commission to deprive the people of these “fundamental” inalienable” and “divine” entitlements called rights must be resisted and strongly challenged.

The right of the Nigerian people to peaceful assembly, expression and political opinion was expressed on the 6th Day of February 2017 all over Nigeria from Abuja, to Lagos, through Kano down to Port Harcourt, the people rose to express their displeasure through a peaceful march, which Ashes Unite Foundation Africa greatly participated.

The core tenets of our vision includes having a Nigeria where the office of the “CITIZEN” is greatly expected but this cannot happen if the people are oblivious of these rights and worst still at loss on how to enforce them.

We actively mobilized young Nigerians and drove home, the point that as Nigerians you don’t need police permission or the backup of the wealthy or the influentialto actively express your bundle rights from free movement, to express and peaceful assembly, many Nigerians especially the young ones got their first reorientation on this as they participated with us and other Non-governmental organizations, in demonstrating the fact that indeed the rights enshrined In The Universal Declaration of Human rights and The Nigerian Constitution would be mere inks if the people fail to understand and enforce them.

We shall continue to demonstrate our willingness to continue educating Nigerians on their Human rights and protecting that of vulnerable Youths, women and Children.

It is a common scene for a road user in Nigeria to sight Federal Road Safety Officials and attempt to avoid them totally or when caught by these officials end up thoroughly extorted. We believe that most times the problem is lack of knowledge of the regulations, laws or better still your rights as a Nigerian Road User. Below is a list of the Traffic offences you can commit under Nigerian Federal Road Jurisdiction and the attendant fees you must pay if you violate such.

Money Laundering covers the concealment of the source, medium and destination of illicit money. The Knowledge of the key provisions of this act is pertinent as it affects the average Nigerian, Banks, companies and even foreign Investors. The crux of the amendment act is geared at providing for direct prohibition of terrorism financing and expands the scope of regulatory authorities to combat the twin pervasions of terrorism and money laundering.it is a calculated legislative attempt at combating the modus operandi of terrorism financing and matters connected there with

CARDINAL PROVISIONS

As we attempt to examine key provisions, we shall generally paraphrase.

Limitation on amount of cash not executed through financial institution

The act provides that no person or body corporate shall, except in a transaction executed through a licensed financial institution, make or accept cash payments of a sum exceeding N5,000,000 (Five Million Naira) or its equivalent in the case of an individual, or N10,000,000 (Ten Million Naira) or its equivalent in the case of a body corporate Any Financial Institution or Designated-Financial Institution that fails to comply with the above provision by making the appropriate compliance report to the regulatory authorities commits an offence and is liable on conviction to a fine of not less than N250,000:00 (Two Hundred and Fifty Thousand Naira) for an individual and not more than N1,000,000 (One Million Naira) for a body corporate, for each day that the contravention continues unabated[1]

Report of Foreign exchange transfer

To keep track, according to the law, any transfer to or from a foreign country of funds or securities in excess of US$10,000 (Ten Thousand United States Dollars) or its equivalent must be reported to the Central Bank of Nigeria ("CBN"), the Securities & Exchange Commission ("SEC") and the Economic & Financial Crimes Commission ("EFCC") within seven days from the date of the transfer transaction in question. The Report must indicate the names and addresses of the Sender, and of the Receiver of the funds or securities[2].

Customs declaration

A chain of reporting was also created under the act. Any transportation of cash or of any negotiable instrument in excess of US$10,000 or its equivalent by individuals in or out of Nigeria must be declared to the Nigeria Custom Service who in turn is obligated to report such declarations to the Central Bank of Nigeria and the Economic and Financial Crimes Commission.

Consequently, Any person who falsely declares or fails to make a declaration to the Nigeria Custom Service in pursuance of Section 12 of the Foreign Exchange (Monitoring and Miscellaneous) Act commits an offence and is liable on conviction to forfeit the undeclared funds or negotiable instrument, or to a term of imprisonment of not less than two (2) years, or to both the term of imprisonment and the forfeiture of the undeclared amount[3]

Know Your Customer Obligation

All financial institutions in Nigeria including all designated non-financial institutions like casinos, Car and Luxury goods distributors, jewelers, Chartered Accountants, Audit Firms, Tax Practitioners, Clearing and Settlement agents, Legal Practitioners, Supermarkets, etc are required to unmask the identity of their customers and update all relevant information on the customers regularly.

Financial Institutions and designated non-financial institutions are also obligated to scrutinize all on-going transactions that they undertake on behalf of their customers by ensuring that their customers' transactions are matches with the business and risk profile of the customers.

Where the customer is a politically exposed person entrusted with performing a prominent public function, both within and outside Nigeria, the financial institution shall put in place for such a customer, an appropriate risk management system in addition to obtaining senior management approval to maintaining any business relationship with the public officer, in fact there is a new incumbent duty to document all transactions, conduct thorough due diligence and mitigate the risks of money laundering[4].

Declaration of Nature of business

A designated non-financial institution involved in the business of cash transactions shall before commencing business submit to the Federal Ministry of Commerce a declaration of the nature of its business along with subsequently submitting a returns register of all its cash transactions above the limited set out in the Money Laundering (Prohibition) Act, 2011.

Also, before any transaction involving a sum of US$1,000 or its equivalent, the designated non-financial institution must identify the customer by requiring him to fill a standard data form and have the customer submit copies of his or her international passport, driving license, national identity card or such other document bearing his or her photograph and or as may be prescribed by the Federal Ministry of Commerce.

A designated non-financial institution that fails to comply with the collation of customers data, and submit the returns requirements as above stated within seven days from the date of each relevant transaction, commits an offence and is liable on conviction to a fine of N250,000:00 (Two Hundred and Fifty Thousand Naira) for each day during which the offence continues unabated. In addition to the above-mentioned penalty, the offending party could also suffer a suspension or a revocation or a withdrawal of his or her or its operating license by the appropriate licensing authority, and as the circumstances of the offence may demand[5].

Surveillance of Suspicious Transactions

Transactions coated with unusual and unjustifiable complexity, and that appears to have no economic justification or lawful objective, and that may involve financing or are inconsistent with the known pattern of the account or business relationship with a customer are required to the reported to the Economic and Financial Crimes Commission ("EFFC") immediately. It is the responsibility of financial institutions and designated non-financial institutions to take all appropriate action to prevent the laundering of the proceeds of a crime or any illegal activity. The Economic and Financial Crimes Commission with the Central Bank of Nigeria are authorised to, whenever they receive a report such as the one mentioned above, among other things, place a stop order not exceeding 72 hours on the account or transaction if it is suspected that such account is involved in the commission of a crime. This period could be extended where an application is made to the Federal High Court for such an extension.

The Federal High Court also has power to order that the funds and the accounts or securities referred to in the financial or designated non-financial Institution's report should be block forthwith. Any institution that fails to comply with the above provisions commits an offence and is liable on conviction to a fine of N1,000,000:00 (One Million Naira) for each day during which the offence continues to be committed[6]

Power of Federal High Court on blockage of accounts

The Federal High Court also has power to order that the funds and the accounts or securities referred to in the financial or designated non-financial Institution's report should be block forthwith. Any institution that fails to comply with the above provisions commits an offence and is liable on conviction to a fine of N1,000,000:00 (One Million Naira) for each day during which the offence continues to be committed[7]

Duty to share records

Financial institutions and designatedNon financial institutions are expected to keep custody of customer data for at least5 years but there is an incumbent duty on them to make it available to the central bank, Economic and Financial Crimes Comission and other attendant law enforcement agencies from time to time as may be ordered in the gazette[8]

Special Anti-laundering programs

The financial and designated non-financial institutions must craft good internal measures to create awareness and internally check the level of compliance with the anti-money laundering provisions through trainings, establishment of audit units and compliance officers. Failure to do this attracts a punitive hammer of not less than N1, 000,000for capital brokerage and other financial institutions and N5,000,000 in the case of Bank in addition, suspend any license issued to the Financial Institution or Designated Non-Financial Institution[9]

Exemption from liability

The Directors, officers and employees of any financial institution or designated non-financial institution who complies with the provisions of this Act, in good faith, are not liable to having any civil or criminal proceedings bought against them by their customers for making a money laundering report[10].

Prohibition of hidden accounts

The opening and or maintaining of numbered or anonymous accounts be it shell banks, or accounts in fictitious names by any person, financial institution or corporate body is prohibited by the act. Any individual or financial institution or corporate body that contravenes the above prohibition commits an offence in the case of an individual, a term of imprisonment of not less than 2 years but not more than 5 years; or in the case of a financial institution or corporate body, a fine of not less than N10,000,000 but not more than N50,000,000, in addition to the prosecution of the principal officers of the corporate body, and the winding up and prohibition of its constitution or incorporation under any form or guise[11]

Bank secrecy not being a defence

"banking secrecy or the preservation of customer confidentiality shall not be invoked as a ground for objecting to the measures set out in sub-section (1) and (2) of this Section or for refusing to be a witness to facts likely to constitute an offence under this Act, the Economic and Financial Crimes Commission (Establishment, etc.) Act or any other law”[12]

Ample Definition of Key Terms

‘Shell Banks’ is defined inter alia as a bank that is not physically operating in a country that it was registered.

“Politically Exposed Persons” is defined as individuals entrusted with public functions by either a foreign government, domestic governments or international organizations.

Nigerian Financial Intelligence Unit is also defined as the central unit responsible for receiving, analyzing, disseminating, to competent authorities financial information of suspects of potential financing of terrorism cum other criminal proceeds.

General Recommendations

The money laundering act from the above analysis is a comprehensive one. One notable thing about this act is that it has been a subject of many amendments, the most recent being the money laundering prohibition Amendment Act 2012.

One notable misadventure in the act is the level of recognition accorded the Financial Intelligence unit of the Economic and Financial Crimes and Other Related Offences Commission. This unit was defined as a mere central unit of collecting and disseminating information.in line with international best practices and the golden provisions of the Convention on the suppression of Finance of terrorism 1999, this unit ought to be an independent body.

It is a pity that this unit is reduced to a mere information collation center, the key element that is missing is independence.it is recommended that the legal frameworks on anti-terrorism financing in Nigeria, must make that unit independent of any government body, their function is too delicate, to be placed under subjugation. Another missing decimal from the act, is specification of the need for all institutions and government bodies to collaborate heavily on the fight against finance of terrorism through money laundering. there is also a need to include what we might call an annual review of enforcement procedure, the provisions of a law are mere inks if the implementation is poor, there is need for all stake holders in the fight against financing of terrorism to meet annually to highlight their gains and tighten loop holes.